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Criminal Procedure
St. Thomas University, Florida School of Law
Kravitz, Gary Neil

Chapter 1 The Exclusionary Sanction
The 4th Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
 
                                                               Exclusionary Rule Cases
Weeks v. United States
The 4th Amendment bars use in federal court of illegally seized evidence.
 
Mapp v. Ohio
The Supreme Court extended the Weeks rule to the state courts.
 
Michigan v. Tucker
Statements obtained from suspect in violation of Miranda will be excluded under the rule, however the witness discovered as a result of the statements would be admissible.
 
Exclusionary Rule
The exclusionary rule provides that evidence obtained by violating defendant’s constitutional rights may not be introduced by the prosecution at defendant’s trial for purposes of proving the defendant’s guilt.
 
Judge Made Rule
The exclusionary rule is a judge-made rule. The Supreme Court has held that the exclusionary rule is not required by the U.S. Constitution. Instead, the rule has been created by the Supreme Court as a means of deterring the police from violating the Fourth, Fifth, and other Amendments.
 
Mapp v. Ohio
Mapp and her daughter lived on top floor of a two floor family dwelling. Officers knocked on door and demanded entrance but appellant refused to admit them w/o a search warrant after talking to her attorney.   Officers tried to enter again, and when Mapp did not come to door the officers forcibly entered. Attorney arrived but the officers would not let him see Mapp or enter the house. Mapp demanded to see search warrant and when officer help what was claimed to be search warrant up, she grabbed it and put it in her bra. At that point the officers struggled with appellant and handcuffed her. Officers searched dressers, photo albums throughout the house.   Obscene materials were found and she was convicted. At trial, prosecution produced no search warrant. 
 
Rule
As a matter of due process, evidence obtained by a search and seizure in violation of the Fourth Amendment is inadmissible in a state court as it is in a federal court.
 
Holding
All evidence obtained by searches and seizures in violation of the Fourth Amendment of the Federal Constitution is, by virtue of the due process clause of the Fourteenth Amendment guaranteeing the right to privacy free from unreasonable state intrusion, inadmissible in a state court.
 
Application
Grand Jury Investigations àThe exclusionary rule does not apply.
Parole Violation Hearing àThe exclusionary rule does not apply.
 
 
Scope of Exclusionary Sanctions
A defendant seeking to have evidence suppressed must prove (1) illegality sufficient to trigger the exclusionary sanction; (2) the defendant’s right to invoke that sanction (“standing”); and (3) that the challenged evidence was obtained as a factual result of the illegality or, as courts often put the matter, that the evidence was “fruit of the poisonous tree.”
 
1. Standing
In general, the Defendant may assert the exclusionary rule only to bar evidence obtained through violation of his own constitutional rights. That is, the Defendant may not keep out evidence obtained through police action that was a violation of X’s rights but not a violation of the Defendant’s own rights.
·         The defendant must have an expectation of privacy.
 
Confession Cases
The standing requirement means that in the case of an illegally obtained confession, only the person who makes the confession may have it barred by the exclusionary rule.
 
Search and Seizure Cases
In search and seizure cases, the standing requirement means that the Defendant may seek to exclude evidence derived from a search and seizure only if his own legitimate expectation of privacy was violated by the search. 
 
2. Fruit of a Poisonous Tree
Even evidence that is only indirectly obtained by a violation of a defendant’s rights is subject to exclusion. Once the original evidence is shown to have been unlawfully obtained, all evidence stemming from it is equally unusable. That is the “fruit of the poisonous tree” doctrine.
 
Fruit of a Poisonous Tree Exceptions
Independent Source
When the police have an independent source for the evidence, which does not involve illegality, the evidence is not barred by the exclusionary rule.
 
Inevitable Discovery
Evidence which would inevitably have been discovered anyway through other police techniques may be admitted at trial.
 
Purged Taint / Attenuation Doctrine
Where intervening factors are significant enough to purge the taint of the original illegal police conduct, the exclusionary rule will not apply.
 
New York v. Harris: Officers had probable cause to believe Harris committed a homicide but obtained no warrant. They nevertheless entered his home and placed him under arrest. This warrantless entry violated the Fourth Amendment. Harris was warned of his rights and admitted the killing. He was taken to the stationhouse, warned again, and signed a written incriminating statement. Later, ignoring Harris’s expressed desire to remain silent, police video taped an interview with him.
·         Rule: Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of [the Fourth Amendment.
·         Holding: The Supreme Court held admission of the statement was proper.
·         Reasoning: Harris’s statement taken at the police station was not the product of being in unlawful custody. Neither was it the fruit of having been arrested in the home rather than someplace else. The police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into Harris’ home.
 
 
The Attenuation / Remoteness Doctrine
The Attenuation Doctrine provides that evidence obtained by illegal means may nonetheless be admissible if the connection between the evidence and the illegal means is sufficiently attenuated or remote. 
·         Is there a point in time where you can say that the fruit is no longer connected to the poisonous tree?
This is more about the function of time. How much time has passed and what has happened since.
Factors
 1.      Temporal proximity of the illegality and the acquisition of the evidence.
 2.      Presence of intervening events and circumstances.
 3.      The purpose and flagrancy of the particular official misconduct.
 
Independent Source Exception
When the police have two paths leading to information, and only one of these paths begins with illegality, the evidence is not deemed fruit of the poisonous tree, and is not barred by the exclusionary rule.
 
The item that is sought to be excluded did not come from the illegality but came from a source that is separate and apart from the illegality.
 
The key is that the evidence must be genuinely independent.
Rationale
The “independent source” rule is based on the need to limit exclusion of evidence to those situations in which rejecting it is necessary to deter improper police activity.
·         Deterrence is adequately accomplished by placing the police in the position they would have occupied had the illegal search not occurred. It does not require placing them in a worse position.
 
Burden of Persuasion
Prosecution à The prosecution would most likely have the burden to establish the applicability of evidence that is proved to be fruit of a poisonous tree.
Defendant à The defendant probably has the burden of establishing that challenged evidence was obtained as a factual result of unreasonable law enforcement conduct.
 
Murray v. United States: Officers were doing a drug investigation and they saw some people going in and out of a warehouse. The officers decided to go into the warehouse. They forced open the door and went inside. When they got inside they saw some bails. Officers automatically assumed drugs were present. They left the warehouse an

of a particular crime at a particular place, and does not supply any of the facts on which that belief is based, it will not be reasonable for the officer to rely on the resulting warrant.
 
Inadequate Affidavit: The underlying affidavit may be “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”
 
Facially Deficient Warrant: The warrant may be so facially deficient that the officers who execute it cannot reasonably presume it to be valid. For instance, the warrant might so completely fail to specify the items to be seized (a violation of the “particularity” clause of the Fourth Amendment) that reliance will be unreasonable.
 
Chapter 2 Constitutional Doctrines Relating to Law Enforcement Conduct
In constitutional terms, challenges to law enforcement conduct usually rest on provisions guaranteeing protection from compelled self-incrimination, rights to privacy and freedom from unreasonable searches and seizures, rights to the assistance of counsel, and general rights to due process of law.
 
Schmerber v. California
The defendant was arrested for drunken driving, and a blood sample was taken from him over his objections, by a physician acting under police direction.
 
Rule
Where exigency is present, and the method and manner in which the search is conducted are reasonable, an officer may draw blood without taking the time to secure a warrant.
 
Holding
The privilege against self-incrimination protected an accused only from being compelled to testify against himself, or to otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis did not involve compulsion to these ends.
 
The record showed no violation of petitioner’s right to be free of unreasonable searches and seizures, because the arresting officer could have reasonably concluded that the delay in obtaining a warrant could result in the destruction or disappearance of evidence and because the test was conducted in a reasonable manner.           
 
Reasoning
There was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor.
·         The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.
·         Given these special facts the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.
 
 
Testimonial / Non-Testimonial Activity
 
Non-Testimonial Activities
ü      Providing Voice Samples 
ü      Fingerprints
ü      Photography
ü      Measurements
ü      Physical Movements
ü      Handwriting Analysis
ü      Examination by Ultraviolet Light
 
Field Sobriety Tests
·         Requiring the arrestee to speak to demonstrate the slurred nature of his speech does not involve compelled testimonial activity.
·         Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice does not, without more, compel him to provide a testimonial response for purposes of the privilege.